FILED

March 24, 1999

Cecil Crowson, Jr.

Appellate C ourt Clerk

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE

OCTOBER 1998 SESSION

STATE OF TENNESSEE, * C.C.A. # 03C01-9711-CR-00506

Appellee, * Sullivan County

VS. * Hon. R. Jerry Beck, Judge

MICHAEL SAMUEL EIDSON, * (Habitual Motor Vehicle Offender)

Appellant. *

For Appellant: For Appellee:

Gale K. Flanary John Knox Walkup

Assistant Public Defender Attorney General & Reporter

P.O. Box 839

Blountville, TN 37617 Ellen H. Pollack

Assistant Attorney General

425 Fifth Avenue North

Cordell Hull Building

Nashville, TN 37243

Greg A. Newman

Assistant District Attorney General

P.O. Box 526

Blountville, TN 37617

OPINION FILED:_____________________

AFFIRMED 

GARY R. WADE, PRESIDING JUDGE
1

The defendant was also charged and convicted of several other driving-related offenses; the

only convic tion on ap peal, how ever, is that fo r violating the h abitual traffic o rder on J anuary 30 , 1997. 

2

OPINION

The defendant, Michael Eidson, pled guilty to violating an order

declaring him to be an habitual traffic offender, reserving the following certified

question of law: whether the 1993 order declaring the defendant to be an habitual

traffic offender is void because the clerk's office failed to mark the order "filed" or

"filed for entry." See Tenn. R. Civ. P. 58. The trial court imposed a two-year

sentence to be served in TDOC. We affirm the judgment of the trial court. 

On October 8, 1993, Criminal Court Judge E. P. Calhoun signed an

order declaring the defendant to be an habitual traffic offender. The order barred

the defendant from driving a motor vehicle until the defendant's driving privileges

had been reinstated. See Tenn. Code Ann. § 55-10-615. The defendant, who was

not represented by counsel, and the assistant district attorney general approved and

signed the contents of the order. A copy was made a part of the minutes of the

court. Judge Calhoun signed the minutes. The clerk did not stamp the order "filed" 

prior to placing the order in the minutes. 

In 1997, the grand jury returned an indictment charging that the

defendant operated a motor vehicle in violation of the order entered in 1993.1 The

defendant filed a motion to dismiss the indictment, claiming the 1993 order was

invalid. When the trial court overruled the motion to dismiss, the defendant pled

guilty, reserving the certified question of law challenging the validity of the traffic

offender order.

Initially, actions under the Motor Vehicle Offenders Act are civil in
3

nature. Bankston v. State, 815 S.W.2d 213, 216 (Tenn. Crim. App. 1991). In

Bankston, this court ruled that one should mount any attack upon the habitual

offender judgment through Rule 60 of the Tennessee Rules of Civil Procedure:

On motion and upon such terms as are just, the court

may relieve a party or the party's legal representative

from a final judgment, order or proceeding for the

following reasons: (1) mistake, inadvertence, surprise, or

excusable neglect; (2) fraud (whether heretofore

denominated intrinsic or extrinsic), misrepresentation, or

other misconduct of an adverse party; (3) the judgment is

void; (4) the judgment has been satisfied, released, or

discharged, or a prior judgment upon which it is based

has been reversed or otherwise vacated, or it is no

longer equitable that a judgment should have prospective

application; or (5) any other reason justifying relief from

the operation of the judgment. The motion shall be

made within a reasonable time, and for reasons (1) and

(2) not more than one year after the judgment, order or

proceeding was entered or taken. 

Tenn. R. Civ. P. 60.02. 

Here, the defendant did not attack the order under Rule 60.02, Tenn.

R. Civ. P.; instead, he filed a motion to dismiss the indictment charging him with

violating the order. See Rule 12, Tenn. R. Crim. P. A collateral attack in a separate

proceeding such as this is not permissible. Everhart v. State, 563 S.W.2d 795, 797-

98 (Tenn. Crim. App. 1978). "'If the attack be collateral in its nature, an attack may

not be made even on the ground of fraud.'" Id. at 798 (citations omitted). 

Even if the defendant had proceeded under Rule 60, the challenge to

the order would have failed. The order declaring the defendant to be an habitual

traffic offender must comply with Rule 58, Tenn. R. Civ. P.: 

ENTRY OF JUDGMENT 

Entry of a judgment or an order of final disposition is

effective when a judgment containing one of the following

is marked on the face by the clerk as filed for entry:

(1) the signatures of the judge and all parties or

counsel, or

(2) the signatures of the judge and one party or
4

counsel with a certificate of counsel that a copy of the

proposed order has been served on all other parties or

counsel, or

(3) the signature of the judge and a certificate of the

clerk that a copy has been served on all other parties or

counsel.

. . . Following entry of judgment, the clerk shall make

appropriate docket notations and shall copy the judgment

on the minutes, but failure to do so will not affect validity

of the entry of judgment.

(emphasis added). The advisory commission comments to the rule provide that "the

effective date of a judgment is the date of its filing with the clerk after being signed

by the judge, even though it may not be copied or entered on the minute book until a

later date." 

In our view, the clerk's failure to file stamp the order would generally

cause the order to be ineffective. The plain language of the rule provides that the

order becomes effective only after the clerk marks the order as filed. Tenn. R. Civ.

P. 58. See Teresa Mayrene King Mayes v. Gary Stephen Mayes, C.A. No. 03A01-

9404-CV-00121 (Tenn. App., at Knoxville, Jan. 11, 1995) (finding final judgment was

not effective because the clerk had not marked the judgment as filed for entry).

The defendant did not, however, challenge the order in a timely

fashion. Under Rule 60.02, Tenn. R. Civ. P., the defendant must act to set aside

the order within a "reasonable time." Here, almost three years elapsed before the

defendant challenged the order. No reason is given for the delay. Moreover,

because the defendant placed his signature on the order, he was fully aware that he

had been prohibited from driving. See State v. Don D. Williams, No. 03C01-9404-

CR-00148 (Tenn. Crim. App., at Knoxville, Jan. 13, 1995) (the court found an eightyear delay in challenging the traffic offender order was reasonable because the

order was a default judgment about which the defendant had no knowledge for

several years). The delay may be unreasonable where the defendant knows of the
5

judgment against him and offers no reason for his failure to timely challenge the

judgment. Magnavox Co. v. Boles & Hite Constr. Co., 583 S.W.2d 611, 613-14

(Tenn. App. 1979). The three-year delay, under these circumstances, was

unreasonable.

Accordingly, the judgment of the trial court is affirmed.

__________________________________

Gary R. Wade, Presiding Judge

CONCUR:

________________________________

David H. Welles, Judge

________________________________

Thomas T. Woodall, Judge